On Tuesday, Columbia Riverkeeper joined a coalition of environmental groups that sued the Trump administration over a rule change that would undo protections under the Endangered Species Act for endangered and threatened species of animals like Columbia River salmon, steelhead and northern spotted owls. Other environmental groups and tribes have also filed separate lawsuits over the rule change, including the Swinomish and Squaxin Island Tribes in Washington state and Eugene-based Cascadia Wildlands.
The rule change, which is scheduled to take effect in September, removes the regulatory definition of “harm” under the ESA that for more than 50 years has been interpreted to include harm to endangered species’ habitats.
That interpretation was affirmed by the Supreme Court in a 1995 decision. U.S. Department of the Interior Secretary Doug Burgum said in a press release the rule change “restores common sense, respects private property, provides much-needed certainty for landowners and follows the statute Congress actually passed.”
Miles Johnson, legal director of Columbia Riverkeeper, joins us for more details.
Note: The following transcript was transcribed using AI and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Last Friday, the Trump administration changed the definition of a single word in environmental law. The word is “harm.” Environmental groups say this change will get rid of habitat safeguards, and in so doing will fundamentally erode protections for wildlife that have been in place for more than half a century.
Columbia Riverkeeper is one of many groups that is now suing the federal government. Miles Johnson is the legal director of the nonprofit. He joins us now. It’s great to have you on the show.
Miles Johnson: Thank you so much for having me, Dave.
Miller: Before we get to the rule change, I want to get a sense for what the status quo had been. So how has “harm” been defined for decades now?
Johnson: So really since the beginning of the Endangered Species Act in 1973, the basic prohibition in the act is you can’t go out and kill endangered species. You can’t kill them by shooting them, by trapping them, and you can’t kill them by destroying their habitat. So you can’t cut down a tree where an endangered spotted owl is nesting, because that is the same to the spotted owl as shooting it. The definition of harm and really the basis in the act has always been that we are protecting endangered species, and in order to do that, we need to protect their habitat.
Miller: What did the Supreme Court say about this definition in 1995?
Johnson: This actually came up in a case that came out of Oregon. The Supreme Court, when the rules that were rescinded by the Trump administration were challenged, the Supreme Court said these rules that prevent actions that harm endangered species by degrading their habitat, that is actually what the Endangered Species Act is all about. These rules that say you can’t destroy the habitat of endangered species, that’s actually required by the act, because that’s what Congress understood when it was writing the Endangered Species Act. And if you look at the text of the Endangered Species Act, that’s pretty clear. Congress was talking about the ecosystems where endangered species live. And it’s clear from historical documents that Congress understood that the species it was trying to protect were endangered in large part because of the destruction of their habitat.
So this idea that this rule change is somehow getting back to a historical understanding of the ESA or the original intent of Congress, that’s just not true. This is a real departure from what everyone has always understood the Endangered Species Act to mean.
Miller: Just so folks have a sense for what you are pushing back against, this is one of the lines from Interior Secretary Doug Burgum’s statement about this: “This action restores common sense, respects private property, provides much needed certainty for landowners and follows the statute Congress actually passed.”
What does the congressional record say about this, decades before the Supreme Court?
Johnson: I wanna read from the statute that Congress actually passed. It says one of the purposes of the Endangered Species Act is “to provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved.” So this idea that the statute as enacted didn’t protect the habitat of endangered species, that’s just not factually accurate.
To go to the point about common sense, I think it is common sense that if we are going to protect endangered species and recover endangered species, we cannot do that without protecting the habitats: the places where they live, the food that they need to eat, the clean water that they need to survive. An Endangered Species Act that doesn’t protect those things really doesn’t protect the species that we’re trying to conserve and recover.
Miller: In a sense, what you’re getting to there is scale. What would it mean for a law to prevent the killing of an individual member of a species, one animal, but not protect population-wide habitat?
Johnson: I think you’d have a much less effective statute. I think in certain cases, there are species on the endangered species list that are on the list because we have hunted, fished or trapped them to extinction, either for economic purposes or because we thought they were undesirable on the landscape. But many, many of the species on that list are threatened or endangered because we have altered the landscape so severely that they no longer have the places and the habitat they need to survive. So if we shrink the Endangered Species Act only to deal with instances where we’re purposefully hunting or trapping too many members of a species, we’re not going to protect a lot of the species that this statute really is intended to protect.
To put a finer point on that, marbled murrelets, Oregon spotted frogs, or wolverine, some of the iconic species that this protects in Oregon and Washington, they’re not listed as endangered because someone has hunted them to extinction. They’re listed as endangered or threatened because they’ve lost a significant amount of their habitat.
Miller: So what are examples of activities or uses of land that would have been prohibited, or where a legal challenge would be successful, say, over the last 50 years, that you think will now be allowed or where a legal challenge would fail?
Johnson: It’s a great question. I think what this rule change is designed to do is open up the development of endangered species habitat without threat of legal action. I think this rule change would encourage someone to, say, pump all the water out of a stream where salmon are spawning to provide cooling water for a data center. Or it could encourage someone to clearcut an old growth forest on private or state land where spotted owls or marbled murrelets are nesting. It could encourage someone to go in and build a bunch of luxury ski condominiums in an area where wolverines have dens or raise their young. It could encourage people to drain a wetland to build a parking lot in Oregon spotted frog habitat.
There’s a lot of different ways that this could play out, especially in Oregon and Washington, where we’re blessed to have so many ecosystems that still support these iconic, in some cases, threatened species. But this is really about opening up the floodgates of development, and sending a signal that the habitat of endangered species is open for development and destruction.
Miller: As I mentioned, yours is one of many suits that are now challenging this rule change, and I imagine there’ll be many other suits aimed at preventing a particular timber sale, mining lease or drilling operation based on the actual statute that you were talking about earlier. So it almost seems inevitable that at some point in the coming years, this issue is going to reach the U.S. Supreme Court. How confident are you that the current court will be interested in bringing back the old regulatory structure of the Endangered Species Act?
Johnson: I think that speculating about whether or not the Supreme Court, at some point in the future, might take this up or what they would do with it is probably premature and also not very helpful. I don’t have a crystal ball and I’m not prepared to make those predictions.
I think what we can say with certainty is that endangered species need habitat. Congress recognized that. It’s been a long-held interpretation both under the statute and the regulations that the Endangered Species Act protects that habitat. We’re going to go to court to defend that because the Trump administration’s decision to yank those protections doesn’t comply with the statute as it’s written.
Miller: Miles Johnson, thanks very much.
Johnson: My pleasure.
Miller: Miles Johnson is the legal director of Columbia Riverkeeper.
“Think Out Loud®” broadcasts live at noon every day and rebroadcasts at 8 p.m.
If you’d like to comment on any of the topics in this show or suggest a topic of your own, please get in touch with us on Facebook, send an email to thinkoutloud@opb.org, or you can leave a voicemail for us at 503-293-1983.
